Category: Justice

This is Good, But I Expect SCOTUS to Overturn it on Corporate “Free Speech” Grounds

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The NLRB is considering a ruling that would require that businesses allow their email systems being used for union organizing:

The NLRB has issued a “Notice and Invitation to File Briefs” [PDF] in the Purple Communications, Inc. case which could overturn the precedent concerning organizing activities on company email systems set by the board’s ruling in the Register-Guard case during the Bush Administration.

Using the Register-Guard decision as precedent, companies can currently enforce policies which prohibit company email from being used for anything but business purposes. But the current NLRB appears interested in reversing that decision partially due to the increased importance of email in organizing since the Bush era. Another goal is to align the ruling with other recent rulings that helped streamline the union election process.

This is a good idea, but it is a pro worker idea, so I expect a 5-4 decision from the Supreme Court overruling this on 1st Amendment grounds.

After all, if the DC, and the 4th Circuit, Courts of Appeals has already found that a requirement that employers post a notice of labor rights was a violation of the 1st Amendment, and the increasingly radical right wing of SCOTUS has become fairly explicitly partisan, and sabotaging labor organizing rights is good for the Republican Party.

The Federal Circuit Court of Appeal F%$#s Up Again

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In Oracle vs. Google, the Federal Circuit Court of Appeal, aka the “Patent Court”, has once again taken a delusionally extremist position on IP, and ruled that software APIs are subject to copyright. As Timothy B. Lee observes, “The court that created the patent troll mess is screwing up copyright too.”

A few years ago, the database company Oracle sued Google, arguing that Google’s Android operating system infringed the copyright of Oracle’s Java technology. On Friday, a federal appeals court sided with Oracle in the long-running dispute.
The decision seems to reflect a fundamental lack of understanding of how software works. And it could create serious headaches for companies that want to make their software compatible with that of competitors.

Why did Oracle sue Google?

The lawsuit focuses on technical decisions Google made when it created the Android operating system.

 Google wanted people who wrote programs in the popular programming language Java to be able to re-use their code in Android apps. To do that, Google had to ensure that Java code written for other purposes ran exactly the same on Android. But negotiations with the company behind Java, Sun Microsystems (which was later acquired by Oracle), broke down, so Google decided to create its own version of Java from scratch.

 ………

 The trial court judge, William Alsup, sided with Google. Copyright only protects the creative aspects of a work, not its functional characteristics. Judge Alsup ruled that because the names of Java functions was essential to achieving interoperability, they were a functional characteristic rather than a creative aspect of Java, and using them wasn’t copyright infringement.

 But on Friday, the Federal Circuit Court of Appeals disagreed. The court was unimpressed with Google’s argument that function names were functional characteristics not protected by copyright. In the Federal Circuit’s view, the list of Java functions was just another kind of “code” that couldn’t be copied without its creator’s permission.

 The court’s reasoning didn’t impress James Grimmelmann, a copyright scholar at the University of Maryland. “Not only do they not understand how computers work, they can’t even read,” he says.

 ………

 The Federal Circuit is the court that hears appeals in all patent cases. Over the last three decades, it has shown a consistent bias in favor of patent holders, setting legal precedents that made the current patent troll problem possible.

 Ordinarily, copyright cases in California would be heard by the US Court of Appeals for the Ninth Circuit. But because Oracle’s fight with Google also includes some patent issues, the Federal Circuit gets jurisdiction.

 And evidently, the Federal Circuit has a bias toward copyright holders to go with its pro-patent bias.

Needless to say, the Federal Circuit Court of Appeals is completely insane, and should be abolished, and the judges on that court should be told to take up knitting.

Is Scalia Phoning it in, Senile, or Maybe Being Gaslighted?*

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In a recent dissent on an environmental regulation case, EPA v. EME Homer City Generation, L. P., Antonin “Fat Tony” Scalia completely mischaracterized a precedent from the last decade, Whitman v. American Trucking Assns., Inc. in 2001.

It is even more bizarre, because Scalia wrote the unanimous decision that he so grossly mischaracterized:

………

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice’s error was noted by University of California-Berkeley law professor Dan Farber, who called it “embarrassing” and a “cringeworthy blunder.”

“Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.”

Doug Kendall, the president of the Constitutional Accountability Center, a liberal legal advocacy group, said the error was mystifying and very unusual for a Supreme Court justice.

I’ve been thinking about this for a while, and seeing that I do not have much in the way of legal chops,† I didn’t really have much to add, until I read Salon‘s followup on this snafu, and this line, from noted Attorney Dan Farber jumped out:

Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted. This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.

[NOTE: After this was posted, the opinion on the Court’s website was revised to eliminate Scalia’s error. Of course, as corrected, the case no longer fits Scalia’s overall thesis of the “unelected officials” trying to override Congressional policy.]

(emphasis original)

Think about the sentence, “Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.“

I can see a clerk, either one of his own, or that of another justice, experiencing Scalia up close, and deciding that he’s lost it, and then giving Tony a little shove out the door.

It’s not much, but you can bet that people in the legal world are wondering if Scalia suffered a small stroke or something, and this will adversely affect reputation.

I think that some of his friends might start suggesting that it is time for him to retire.  After all, he’ll never be Chief Justice.

Certainly, I believe that his brain has been damaged by overexposure to bile for years.

*A way of subtly psychologically torturing someone to make them doubt their sanity.
†I’m an engineer, not a lawyer, dammit!‡
‡I LOVE IT when I get to go all Doctor McCoy!!!

Not Dredd Scott Bad, but Maybe Plessy v. Ferguson Bad

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In a 5-4 vote the Supreme Court just ratified sectarian prayer at government meetings:

A divided Supreme Court ruled Monday that legislative bodies such as city councils can begin their meetings with prayer, even if it plainly favors a specific religion.

The court ruled 5 to 4 that Christian prayers said before meetings of an Upstate New York town council did not violate the constitutional prohibition against government establishment of religion; the justices cited history and tradition.

“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government,” Justice Anthony M. Kennedy wrote for the court’s conservative majority.

The ruling reflected a Supreme Court that has become more lenient on how government may accommodate religion in civic life without crossing the line into an endorsement of a particular faith. All nine justices endorsed the concept of legislative prayer, with the four dissenters agreeing that the public forum “need not become a religion-free zone,” in the words of Justice Elena Kagan.

But there was sharp disagreement after that, and the majority ruling could encourage public bodies to give more leeway to religious expression in their ceremonial prayers and less deference to the objections of religious minorities.

The court’s five conservatives said legislative prayers need not be stripped of references to a specific religion — the prayers at issue often invoked Jesus Christ and the resurrection — and said those given the opportunity to pray before legislative meetings should be “unfettered” by what government officials find appropriate.

It is stupid, petty, small minded, and bigoted ruling.

I’m disappointed, but not particularly surprised.

I will say the fact that the bigotry-deaf Kennedy is now the “moderate vote” on the court.

The Definition of a Good Journalist………

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When I muse on the difference between a journalist and a stenographer, I can think of no better example than Jason Mojica’s paean to Mohammed Fahmy, Jailed Al Jazeera Journalist Is Actually Kind of a Dick:

This may surprise you, but Mohammed Fahmy, the imprisoned Al Jazeera English journalist who on Friday was awarded the World Press Freedom Award, is actually kind of a dick.

And I’m sure he feels the same way about me.

A couple of years before he and his colleagues Peter Greste and Baher Mohamed were arrested in Cairo and accused of running a terrorist cell from their rooms at the Marriott, I worked with Fahmy on a story I produced for VICE News. It was July 2011 and the toppling of President Hosni Mubarak earlier in the year hadn’t brought the sea change that Egyptians were hoping for. Protesters were expected to return to Tahrir Square in what was being dubbed, “Egypt’s Second Revolution.” The very short version of this story is that we were having trouble getting all of the elements of the story we were after when we met Fahmy who offered his services as a fixer. Now, we already had a fixer in Cairo, but I was willing to try anything at that point, so I hired Fahmy for a day to see what he could do. He delivered, but he didn’t gel with me and my crew. At the end of a very long day of shooting, we were happy to part ways.

………

He ran the story, names and all, which pissed me off. We traded shitty BBMs [Blackberry Messenger] back and forth, and I came away thinking of him as a pushy, bull-headed bastard who cared more about getting a story out than for the people who that story was about.

In other words, a damn good journalist.

Journalists are people whose jobs it is to find out things that people don’t necessarily want them to find out. That often requires a type of aggression and self-righteous determination that rubs people the wrong way. And that’s one of the reasons we need to change the way we talk about press freedom.

While we like to lionize journalists as noble truth seekers serving the public good, for those on the other side of their aggressive reporting, they are a f%$#ing nightmare. So when journalists get detained, our knee-jerk moral indignation means f%$#-all to the people who see those journalists as a threat. Wagging our finger at them in the hope that they’ll suddenly come around to our way of thinking is naïve.

(%$# mine)

Reporters are supposed to be a pain in the ass.

When reporters become accepted members of polite society, they become eunuchs in the court of the Sultan.  (See Woodward, Robert)

They are supposed to be unsuited for polite society.

Chaos is Job Won!*

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What a surprise. After a decades long assault from the right wing, and an increasingly hostile judiciary, the bigots have managed to re-segregate our public schools:

For decades, federal desegregation orders were the potent tool that broke the back of Jim Crow education in the South, helping transform the region’s educational systems into the most integrated in the country.

 Federal judges, often facing down death threats and violence, blanketed Southern states with hundreds of court orders that set out specific plans and timetables to ensure the elimination of racial segregation. Federal agencies then aggressively used the authority of the courts to monitor hostile school systems, wielding the power of the 1964 Civil Rights Act to strip federal dollars from districts that refused to desegregate.

 The pace of the change wrought by the federal courts was breathtaking. In 1963, about 1 percent of black children in the South attended school with white children. By the early 1970s, the South had been remade — fully 90 percent of black children attended desegregated schools. Court orders proved most successful in the South, but were also used in an attempt to combat de facto segregation in schools across the country, from New York to Michigan to Arizona.

 Today, this once-powerful force is in considerable disarray.

 A ProPublica examination shows that officials in scores of school districts do not know the status of their desegregation orders, have never read them, or erroneously believe that orders have been ended. In many cases, orders have gone unmonitored, sometimes for decades, by the federal agencies charged with enforcing them.

 At the height of the country’s integration efforts, there were some 750 school districts across the country known to be under desegregation orders.

 Today, court orders remain active in more than 300 districts. In some cases, that’s because judges have determined that schools have not met their mandate to eliminate all vestiges of segregation.

 But some federal courts don’t even know how many desegregation orders still exist on their dockets. With increasing frequency, federal judges are releasing districts from court oversight even where segregation prevails, at times taking the lack of action in cases as evidence that the problems have been resolved.

 ………

 Since the 1990s, the Supreme Court has sharply curtailed the power of parents to challenge racial inequities in schools. Districts not under court orders are largely prohibited from considering race to balance schools. And parents in these districts must show that school officials are intentionally discriminating when they make decisions that adversely affect black and Latino students.

 And so, as desegregation orders are ignored, forgotten or lifted, black parents are losing the ability to effectively challenge school inequality.

 Over the course of months, ProPublica has compiled the nation’s most comprehensive and accurate data on active desegregation orders. We used legal databases, academic studies and contacted more than 160 school districts across the country.

This is not an accident.

Between the Republican Party’s embrace of segregation for political success, and the Democratic Party’s cowardly unwillingness to enforce the law to placate people who will never for then, we are back to separate and unequal.

*H/T Trit on the Stellar Parthenon BBS for that quote.

Muck Fyhrvold

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Nathan Myhrvold founded Intellectual Ventures, and proceeded both directly, and through a shadowy shell companies, has proceeded to use dodgy patents, and threat of expensive litigation to extort money from businesses.

Well, we have just had a on the first case that IV put its own name on, and Myhrvold’s baby went down in flames:

Intellectual Ventures (IV) is the world’s biggest patent-licensing company and boasts of having collected tens of thousands of patents since it was founded in 2000. It’s raised about $6 billion from investors over the years, and to recoup that money, it started filing lawsuits over patents a few years ago. In 2013, it launched a new salvo, filing 13 lawsuits against major US banks, including Bank of America, JP Morgan Chase, and Capital One.

The Capital One case ended last Wednesday, when a Virginia federal judge threw out the two IV patents that remained in the case. It’s the first IV patent case seen through to a judgment, and it ended in a total loss for the patent-holding giant: both patents were invalidated, one on multiple grounds. (An IV case against Motorola went to a jury, but it ended in a mistrial, and no new trial has been scheduled.)

The case was just weeks away from a jury trial, but US District Judge Anthony Trenga didn’t let it get that far. In an opinion published Wednesday, Trenga found that IV’s patents were simply abstract ideas: “nothing more than the mere manipulation or reorganization of data,” he wrote. “At most, the patents describe a more efficient system or method for performing tasks than could be done without a computer, i.e. monitoring expenditures according to preset limits (the ‘137 Patent) or determining what would appeal to a particular user from a particular website (the ‘382 Patent.)”

Unfortunately, I can think of no way to make Myhrvold’s business model, and those of other patent trolls illegal (as in go to jail), but perhaps we can see some meaningful changes to the law to make this behavior legally untenable.

I hope that Monsanto’s in the crosshairs as well.  In many ways, they are worse, because, our lives do not depend on the CWV code on a credit card, but they do depend on food.

H/t Crooks and Liars.

Our Clusterf%$# in Guantánamo

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As has been obvious since their founding, the military tribunals at Guantánamo are completely dysfunctional, and the latest problem, where the FBI has been infiltrating the defense teams is getting even worse:

The major fissure concerning the controversial military commissions at Guantánamo Bay is no longer between civil liberties and national security. It’s between the commissions and the intelligence services, with the future of the 9/11 war crimes tribunal hanging in the balance.

On one side are both the commission prosecutors and defense attorneys, all of whom grapple in different ways with bringing justice to defendants who spent years in the brutal black box that was CIA custody. The prosecution in particular is laboring to send the message that, after years of stop-and-start proceedings, the commissions are now a viable, professional complement to federal courts.

On the other side are the CIA and the FBI, which have gone to extraordinary lengths to prevent information about the detainees – particularly about their torture in CIA custody – becoming public. The intelligence and law enforcement agencies’ equities at Guantánamo, at a minimum, conflict with the successful military prosecution of the detainees. At worst, they undermine the venue meant to provide a final dispensation for alleged post-9/11 war crimes.

And the agencies may now have overplayed their hand.

Last week, defense attorneys for 9/11 co-defendant Ramzi bin al-Shibh revealed that the FBI surreptitiously compelled a classification specialist assigned to them to sign documents indicating he would inform on the defense teams.

They have also bugged defense conference rooms, seized control of the muting system at the trial without the knowledge of the of the judge, and they are preparing to defy that judge’s order for details on the CIA’s torture program.

If the military tribunals were anything close to a real trial, the charges would have already been dismissed because of malfeasance on the part of the government.

For f%$3’s sake, just move this to the Federal Courts, where the jurist are capable of finding their posteriors with either, or both, hands.

And Our Forever War Continues………

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Under the laws of war, once the war is over, the POWs are set free. Well, not this time:

Typically, when a war ends, so does the combatants’ authority to detain the other side’s fighters. But as the conclusion of the US war in Afghanistan approaches, the inmate population of Guantánamo Bay is likely to be an exception – and, for the Obama administration, the latest complication to its attempt to close the infamous wartime detention complex.

In December, when President Barack Obama and his Nato allies formally end their combat role in Afghanistan, US officials indicate there is unlikely to be a corresponding release of detainees at Guantánamo who were captured during the country’s longest conflict.

The question has been the subject of recent internal debate in the Obama administration, which is wrapped up in the broader question of future detention policy.

Already human rights groups and lawyers for the detainees say they anticipate filing a new wave of lawsuits challenging the basis for a wartime detention after the war ends – the next phase in more than a decade of attempts to litigate the end of indefinite detention.

For the White House, the Justice Department and the Pentagon, the complicating factor is the unique legal authority undergirding the Afghanistan war.

Passed by Congress days after the terrorist attacks of 11 September 2001, the Authorization to Use Military Force cleared the legal path for the invasion of Afghanistan – and much more.

Known as the AUMF, its broad language blessed not only the Afghanistan war, but a global battle against al-Qaida without an expiration date. Subsequent interpretations of the AUMF broadened the definition of the adversary to include al-Qaida’s “associated forces”.

If they are not released when the war is over, then try them in civilian courts.

This state if nebulous never-ending war is destroying us.

Osama bin Laden is sitting somewhere laughing.

Would You Like a Loss of Civil Rights with Your Breakfast Cereal?

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General Mills is looking to make binding arbitration mandatory for people who take their lives into their hands when they eat their food:

Might downloading a 50-cent coupon for Cheerios cost you legal rights?

General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.

Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site.

In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms.

“We’ve updated our privacy policy,” the company wrote in a thin, gray bar across the top of its home page. “Please note we also have new legal terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.”

………

The change in legal terms, which occurred shortly after a judge refused to dismiss a case brought against the company by consumers in California, made General Mills one of the first, if not the first, major food companies to seek to impose what legal experts call “forced arbitration” on consumers.

“Although this is the first case I’ve seen of a food company moving in this direction, others will follow — why wouldn’t you?” said Julia Duncan, director of federal programs and an arbitration expert at the American Association for Justice, a trade group representing plaintiff trial lawyers. “It’s essentially trying to protect the company from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product.”

You have problem with Corporate Capitalist ™®©, comrade?*

We really need to pass Al Franken’s Arbitration Fairness Act, and put an end to this bullsh%$.

*H/t CZ at the Stellar Parthenon BBS for this quote.

This is Complete and Total Contempt for the Law and Civil Rights

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Not only was the FBI spying on the defense counsel at the kangaroo courts military tribunals at Guantánamo, they actually flipped a member of the defense team with access to all their documents into an informant:

The US government’s troubled military trials of terrorism suspects were dealt another blow on Monday when proceedings were halted after an allegation surfaced that the Federal Bureau of Investigation turned a member of a 9/11 defendant’s defense team into a secret informant.

Judge James Pohl, the army colonel overseeing the controversial military commission at Guantánamo, gaveled a hearing out of session after barely 30 minutes on Monday morning, following the revelation of a motion filed by the defense stipulating that the FBI approached an unidentified member of the team during the course of an investigation into how a manifesto by accused 9/11 architect Khalid Shaikh Mohammed found its way to the media.

Defense attorneys argued the government plunged them into a potential conflict of interest, as they would need to potentially defend themselves against a leak investigation, risking their ability to put their clients’ legal needs ahead of their own.

They implored Pohl to investigate, and if necessary, assign their clients with new independent counsel to advise the defendants about the existence and implications of conflict of interest. That could be a lengthy process – potentially the next delay for a proceeding that has yet to get out of the pretrial stage nearly two years after the latest incarnation of the 9/11 military trials began.

“We have an impossible situation in terms of representing our client … on any issue,” said James Harrington, a civilian attorney for Mohammed’s co-defendant Ramzi bin al-Shibh in the case, which carries the death penalty.

………

On 6 April two FBI agents approached the defense security officer assigned to bin al-Shibh’s defense team with a document that “in essence, seeks to enlist defense personnel” in an inquiry into the manifesto leak, said Walter Ruiz, an attorney for co-defendant Mustafa Ahmed al-Hasawi.

Harrington said the unnamed security officer, a contractor for the firm SRA International, had signed the document, which was written to indicate the start of an “ongoing” relationship with the bureau.

A defense security officer is a non-lawyer assigned by the commission’s convening authority to advise the defense team on the handling of classified information, among other issues. The officer would have had “unlimited access to our files,” Harrington said, although not to those of the other legal teams.

The presiding officer has adjourned hearings to determine who else might have been turned into a government agent. Of note is that even though the prosecution denies knowledge of any FBI investigation, “Joanna Baltes, an absent member of the prosecution team who recently became chief of staff to FBI deputy director Mark Giuliano, played a role in the FBI involvement.” (emphasis mine)

Yea, sure, no collusion between the FBI and the Prosecutors at Guantánamo.  None at all. (Not)

On every single level, the military commissions have been a failure.

It was created to generate guaranteed convictions, and in so doing it eschewed the hundreds of years of developments that created the modern Unified Code of Military Justice, and the nearly 800 years of development of legal process that began with the Magna Carta.

These proceedings are an embarrassment to the nation which diminishes our stature throughout the world while serving as a highly effective recruiting tool for extremists,

The Stool Pigeon Sings

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Pass the Popcorn

It appears that former Chris Christie political operative David Wildstein is singing to a grand jury:

Bad news for Chris Christie — and very good news for the citizens of New Jersey: Esquire has learned from sources close to the investigation that David Wildstein, the former Port Authority operative who helped plan and execute the Great Fort Lee Clusterfk, is now cooperating with Paul Fishman, the federal prosecutor investigating the soon-to-be-ex-governor and his minions for criminal conduct. Fishman has also increased the number of investigators at work on the case, and has begun presenting evidence and witnesses to a grand jury in Newark.

Wildstein was forced to quit his PA job in December, before Fort Lee’s corpses bobbed to the surface. Christie, who went to high school with Wildstein and put him at the PA as “director of interstate capital projects” — a job created just for him — helped edit the media statement thanking Wildstein “for his service to the people of New Jersey and the region.”

In January, Wildstein refused to testify before a New Jersey legislative committee investigating last September’s George Washington Bridge lane closures, citing his 5th Amendment protection against self-incrimination. It was Wildstein’s cache of e-mails and texts, provided to the committee, that featured the instantly immortal exchange between Christie’s former deputy chief of staff, Bridget Kelly (“Time for some traffic problems in Fort Lee”) and Wildstein (“Got it”).

No wonder the mainstream Republicans are looking at Jeb Bush for President now.

Christie may serve out his term, but he is not going to be the Republican nominee.

We are All Koch Suckers Today

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The court ruled in McCutcheon v. Federal Election Commission, the Supreme Court gutted campaign finance reform:

Back in October, when the Court heard oral argument in a challenge to the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees, there wasn’t a whole lot of suspense.  Given the Court’s recent campaign finance rulings, it seemed clear that a majority of the Justices would vote to strike down at least some of the caps; the only real question was whether they would strike down them all.

Today we got our answer from the Court, and it was a decisive “yes”:  all of the aggregate limits must go.  Let’s talk about today’s decision in McCutcheon v. Federal Election Commission in Plain English.

As I explained in my preview of the case in October, there are (at least until today) two kinds of limits on campaign contributions.  The first is what is known as the “base limits” – the maximum that you can contribute to a candidate, political party, or political action committee in an election.  The aggregate limits are the second kind:  in a two-year period known as an “election cycle,” you can donate no more than $48,600 to all candidates combined and no more than $74,600 to political parties and political action committees.

An Alabama businessman named Shaun McCutcheon went to court to challenge the aggregate limits.  He didn’t ask for the right to give more money than the base limits to any particular candidate; instead, he wanted to give money to many more candidates, but the aggregate limits prohibit him from doing so.  That, he argued, violates his free speech rights under the First Amendment.

Although a lower court disagreed with McCutcheon, he found a more receptive audience in the Roberts Court, which has consistently voted to overturn campaign finance regulations.  Chief Justice John Roberts wrote the opinion for the Court, which was joined by Justices Antonin Scalia, Anthony Kennedy, and Samuel A. Alito.  (Justice Clarence Thomas wrote his own opinion saying the Court should go even further, but the Chief Justice’s opinion is the controlling one.)

………

Breyer’s dissent lamented that the Court’s decision “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” In his view, “corruption” is not limited to scenarios involving a quid pro quo, which he described as “an act akin to bribery.” Instead, it includes exactly the kind of efforts to use money to obtain influence and access to elected officials that the Chief Justice’s opinion characterized as “a central feature of democracy.” This is so, Breyer explained, because if people believe that elected officials only pay attention to big-money donors, they may lose faith in the political process altogether.

Breyer next contended that the Court is just wrong when it asserts that, even if the aggregate limits are removed, there is still no way to get around the base limits. Here the dissent painted a very different picture from the rest of the Court, predicting that “donors can and likely will find ways to channel millions of dollars to parties and to individual candidates.”

Whose vision of the future of campaign finance will prevail – the dissent’s apocalyptic one or the Chief Justice’s more optimistic one? You can be sure that journalists and election law experts will be paying close attention over the next few years. We can also be confident that the decision today will spawn new campaign finance challenges – including, in all likelihood, to the “base limits” themselves. Stay tuned . . . .

And if this is not bad enough, it looks like SCOTUS will overturn bans on corporate donations to candidates:

The Supreme Court, fresh from its new ruling expanding the political donation options of private individuals, faces a choice this week about its current view on campaign contributions to candidates by corporations.  For weeks, the Court has been sitting on a case that would test a state’s flat ban on corporate donations, and is now set to look at that case in the wake of Wednesday’s ruling in McCutcheon v. Federal Election Commission.

The Court, according to its electronic docket, is scheduled to consider at its private Conference on Friday the case of Iowa Right to Life Committee v. Tooker.  That case has been ready for the Court, technically, since November, but so far no action has been taken.

If the Court’s usual practice is followed, it will have at least three options: agree to hear the case to test the constitutionality of Iowa’s ban on corporate donations, deny review and thus leave intact a federal appeals court ruling upholding that ban, or tell the lower courts to reconsider based on the McCutcheon ruling.

In 2003, in the case of FEC v. Beaumont, the Court upheld the long-standing federal ban on corporations, at least so far as that provision applied to non-profit corporations.  In the new case, the Iowa Right to Life Committee urged the Court to overrule the Beaumont decision, arguing that it cannot be squared with the Court’s 2010 decision in Citizens United v. FEC.

Needless to say, we can expect another 5-4 decision allowing rich people to double down on their influence.

We ……… are ……… f%$#ed.

This is the Wrong Way to Do this

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We now have a report that the US is having discussions with Israel about having Jonathan Pollard released as a way to move along the Middle East peace process:

The United States is talking with Israel about the possibility of releasing convicted spy Jonathan Pollard early from his life sentence as an incentive in the troubled Mideast peace negotiations, a person familiar with the situation said Monday. Such an extraordinary step would show the urgency of U.S. efforts to keep negotiations alive.

The person cautioned that a Pollard release — which would be a dramatic turnaround from previous refusals — was far from certain and that discussions with Israel on the matter were continuing. The person spoke only on condition of anonymity because he was not authorized to discuss the negotiations on the record.

In return for such a release, Israel would have to undertake significant concessions to the Palestinians. Such concessions could include some kind of freeze on Israeli settlements in disputed territory, the release of Palestinian prisoners beyond those Israel has already agreed to and a guarantee that Israel would stay at the negotiating table beyond an end-of-April deadline.

First, this is stupid on the part of the US.

Netanyahu really does not care about Pollard beyond the political benefits he can derive from securing his releases.

More importantly, there is a protocol to such things.

Even among those most opposed to his release, there is acceptance of his release as a part of a spy swap, as this is the socially acceptable way to do this within the intelligence community.

Not Enough Bullets………

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The hedge fund vultures have outdone themselves, the first example are the pukes who are buying shares in the in the 1983 Marine Corpse bombing in Beirut:

Iran is still a pariah in the international community, but one hedge fund thinks it will eventually pay $1.8 billion as ordered by a U.S. court.

RD Legal Capital hopes to raise up to $100 million to buy the rights to payments from families of the 241 U.S. Marines killed in a terrorist attack in Lebanon in 1983. A federal court in 2007 found Iran liable for the truck-bomb attack, which led to the withdrawal of U.S. troops from war-torn Lebanon.

Iran, of course, is not on the best of terms with the U.S., and the two countries do not have diplomatic relations. Still, Iran’s central bank is appealing the $1.8 billion verdict against it.

Victims’ families agreed to allow RD to buy stakes in the judgment. The firm will not buy out any of the beneficiaries, instead investing only in pieces of each of the 151 claims. The Iran fund is RD’s first ever focused on a single case, The Wall Street Journal reports.

And then there are the vulture funds who are buying into the abject misery and death that the banksters (and the Germans) have caused in Greece and Portugal:

Yield-hungry investors are flocking back to Greek and Portuguese markets, shunned by international buyers for four years, as the outlook for the bailed-out countries improves and alternatives look more expensive or increasingly risky.

Portuguese and Greek shares and bonds have been the best performers in Europe in 2014, and funds invested in them are making a killing, Thomson Reuters data shows.

Investors say they are driven by economic improvement, which provides fresh impetus to an initial bounce triggered by the European Central Bank’s pledge in 2012 to save the euro.

Potential investment alternatives are also less tempting. Tensions between the West and Russia and global growth concerns cloud the outlook for similar-yielding emerging markets, while a 1-1/2 year rally has shrunk returns elsewhere in euro zone debt.

“It’s not so much an interest-rate-driven rally but much more a structural shift and a perception that the euro crisis is behind us,” said Franz Wenzel, chief strategist at AXA Investment Managers, which manages assets worth about 550 billion euros ($760 billion).

After nearly crashing out of the euro zone in 2012, Greece’s recession is easing, while the Portuguese economy is already rebounding. Lisbon is due to exit its international bailout in about two months.

As much as Timothy Geithner might disagree, there has to be well defined limits to what is a legal financial speculative instrument.

These people are F%$#ing ghouls.

I Really Hope That This Happens

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The Supreme Court has declined to hear a case from Delaware which effectively makes arbitration hearings there open to the public:

The Supreme Court on Monday cleared the way for the public and the press to sit in on arbitration of business disputes in Delaware, when a state judge acts as the arbitrator. That was the result of the Court’s denial of an appeal by a group of Delaware judges, seeking to keep those proceedings closed to the public. If business firms do not like having a public audience, that could limit or even kill a four-year-old Delaware experiment.

That was one of several denials of review in significant cases. In addition, the Court agreed to add to its decision docket for next Term a new case on the appeal rights of state prisoners in federal habeas courts. It also sought the U.S. government’s views on the deadline for filing a lawsuit claiming that the manager of a retirement plan made faulty investment decisions, and on the right of an investor to sue over the filing of a defective stock registration statement, when the investor acquired an interest in the stock before such a statement existed.

The Court offered no explanation, as usual, when it decided against reviewing the Delaware arbitration case, Strine v. Delaware Coalition for Open Government.

Ordinarily, arbitration proceedings are not public events, because they are a way to resolve private legal disputes without the formality of a court trial and without much of the expense of hiring trial lawyers and of paying for pre-trial and trial maneuvering. Delaware’s legislature wanted to keep arbitration a closed matter when it decided, in 2009, to allow state judges to take on the task of arbitrator in a closed system.

The U.S. Court of Appeals for the Third Circuit ruled, however, that this would turn arbitration into something like a civil courtroom trial, so they had to be open to the public and the press under a string of Supreme Court precedents on the right of First Amendment access to court proceedings.

Considering Delaware’s history of whoring for shady corporate entities, I expect to see a rewrite of the law to once again favor corporations, but it’s nice to see some more push-back against the corrupt and blatantly unfair arbitration which we are saddled with in the United States.

I Got One Explanation for this, and It Ain’t Good for Port Authority Chairman David Samson

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The US Attorney in New Jersey is investigating the collection of scandals involving the George Washing Bridge and misappropriation of Hurricane Sandy aid.

On Friday, something odd happened. The US Attorney for New York City issued a subpoena for Port Authority Chairman David Samson.

Technically, it might be in the New York US Attorney’s jurisdiction, since there are issues about votes that Samson took where he refused to recuse himself from issues that benefited the legal clients  at his firm.

The votes took place in New York City, so there are issue of whose case this might be.

Well today, the subpoena was rescinded:

A subpoena issued by the federal prosecutor from Manhattan to the Port Authority of New York and New Jersey seeking documents related to Chairman David Samson was rescinded this afternoon, a source with knowledge of the subpoena said.

Samson has been under intense scrutiny by investigators and the media for several votes he has taken on Port Authority actions that may have benefited clients of his law firm, Wolff & Samson.

The subpoena was initially sent to Samson on Friday by the U.S. attorney for the Southern District of New York in Manhattan, said the source, who spoke on condition of anonymity due to the sensitivity of the matter.

However, the subpoena was withdrawn, according to the source, because of an overlapping investigation by Paul Fishman, the U.S. attorney in New Jersey.

I understand why the subpoena was issued, but it is not clear why it was pulled back in 1 business day.

I can only think of one reason why a jurisdictional dispute would be resolved so quickly, and that is that the NJ USA called the NY USA, and explained that Samson is a primary target of their investigation.

I really cannot see any other scenario which would engender such a quick reversal.

We Now Get the Chance to See How Much Corruption Barack Obama will Tolerate in the State Security Apparatus

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We have know that the President tolerated it when Director of National Intelligence James Clapper blatantly and unashamedly lied to Congress, but this is a much bigger deal.

Dianne Feinstein* just took to the floor of the Senate and accused the CIA of obstructing a senate investigation and attempting to intimidate the Senate Intelligence Committee Staff:

The chairwoman of the Senate intelligence committee, Dianne Feinstein, on Tuesday accused the Central Intelligence Agency of a catalogue of cover-ups, intimidation and smears aimed at investigators probing its role in an “un-American and brutal” programme of post-9/11 detention and interrogation.

 In a bombshell statement on the floor of the US Senate, Feinstein, normally an administration loyalist, accused the CIA of potentially violating the US constitution and of criminal activity in its attempts to obstruct her committee’s investigations into the agency’s use of torture. She described the crisis as a “defining moment” for political oversight of the US intelligence service.

 Her unprecedented public assault on the CIA represented an intensification of the row between the committee and the agency over a still-secret report on the torture of terrorist suspects after 9/11.

 Feinstein, who said she was making her statement “reluctantly”, confirmed recent reports that CIA officials had been accused of monitoring computer networks used by Senate staff investigators. Going further than previously, she referred openly to recent attempts by the CIA to remove documents from the network detailing evidence of torture that would incriminate intelligence officers.

 She also alleged that anonymous CIA officials were effectively conducting a smear campaign in the media to discredit and “intimidate” Senate staff by suggesting they had hacked into the agency’s computers to obtain a separate, critical internal report on the detention and interrogation programme.

While it is tempting to focus on the obvious irony of Feinstein’s outrage in the face of her previous full throated support of intellligence excesses, as Edward Snowden does, this is a much bigger issue.

If what Feinstein alleges is true, and I am inclined to believe it because it is a statement against her normal interests, which is as a CIA fanboi, it lends credibility.

Going over her speech, here is what she presents:

  • The Senate Intelligence Committee demanded that all relevant documents be turned over to them so that they might be able to investigate the CIA’s torture program.
  • The CIA balked, and so the committee and then CIA Director Leon Panetta negotiated an arrangement whereby the staff would access these documents at a CIA secured facility.  Here is the relevant quote:

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

  • Unsurprisingly, the CIA provided the documents without any sort of index or any search facility, though one was later added at Senate requests
  • It was this computer system that the CIA searched, in contravention of their agreement.
  • The CIA also insisted on additional multiple level levels of review that were not a part of the agreement.
  • When the staff found something relevant, they would save it to disk at the securely located computer, or print it out.
  • The staff found that documents that they had flagged as important were disappearing.
  • The CIA denied this, then blamed the IT staffers, and finally claimed that this was ordered by the White House, who denied this, and ordered the CIA to cooperate, “The matter was resolved with a renewed commitment from the White House Counsel, and the CIA, that there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee.“
  • In 2010, the staff found a draft of the “Internal Panetta Review,” an internal review that Panetta commissioned by on torture that demolished the official CIA response to the (as yet unreleased) Senate report.  It specifically contradicted the official report in a number of ways, most notably:
    • The practices were far more brutal that officially revealed.
    • There was no meaningful intelligence derived from torture
  • Because of the importance of the document, it mirrored the Senate Committee conclusions, the staff printed it out for safe keeping, and placed it in the secure safe in the Senate Intelligence Committee Offices.  This was done in accordance with the document handling procedures agreed between the CIA and Intel Committee.
  • The CIA then disappeared the Panetta report from the Senate staffers computers.
  • The CIA has still refused to supply the Panetta Review to the Senate.
  • On January 15, 2014, “CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.”
    • Note that even if this does not qualify as obstructing a Congressional investigation (I think that it does), it is a violation of the law for the CIA to conduct surveillance in the US   If they needed to search the computers (assuming that Congressional immunity does not apply) they would have to go the the FBI. (Which they must have hated)
  • The CIA has refused to provide additional details on the scope of the search, which, “May also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”
  • The CIA’s Inspector General looked at the searches done by the CIA, and concluded that they needed to be investigated criminally, and made a referral to the DoJ.
  • In response, the acting general counsel of the CIA made a criminal referral of the Senate staffers to the DOJ.

Here is the money quote:

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.

(emphasis mine)

While Feinstein does not mention the counsel’s name, it is public knowledge that the CIA’s acting general counsel is Robert Eatinger, who among other things, Authorized the Destruction of the CIA Torture Tapes Against the Instructions of the Bush White House and the Director of National Intelligence.

The White House response is a a statement of, “Great Confidence,” in CIA director John Brennan.  So Obama wants to keep this guy.

As I have said before, the worst constitutional law professor ever.

I expect further stonewalling on the part of both the CIA and the Obama administration.

What should happen is that Eatinger should be placed on leave, and his security clearance should be suspended, but I imagine that he will continue to do damage to the Constitution of the United States, and then he will retire with a full pension.

*Full disclosure, my great grandfather, Harry Goldman, and her grandfather, Sam Goldman were brothers.

Full speech follows:

Statement on Intel Committee’s CIA Detention, Interrogation Report

Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today spoke on the Senate floor regarding the committee’s study on the CIA Detention and Interrogation Program:

“Over the past week, there have been numerous press articles written about the Intelligence Committee’s oversight review of the Detention and Interrogation Program of the CIA, specifically press attention has focused on the CIA’s intrusion and search of the Senate Select Committee’s computers as well as the committee’s acquisition of a certain internal CIA document known as the Panetta Review.

I rise today to set the record straight and to provide a full accounting of the facts and history.

Let me say up front that I come to the Senate Floor reluctantly. Since January 15, 2014, when I was informed of the CIA’s search of this committee’s network, I have been trying to resolve this dispute in a discreet and respectful way. I have not commented in response to media requests for additional information on this matter. However, the increasing amount of inaccurate information circulating now cannot be allowed to stand unanswered.

The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.

A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence.

After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.

The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed.

Chairman Rockefeller sent two of his committee staffers out to the CIA on nights and weekends to review thousands of these cables, which took many months. By the time the two staffers completed their review into the CIA’s early interrogations in early 2009, I had become chairman of the committee and President Obama had been sworn into office.

The resulting staff report was chilling. The interrogations and the conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us. As result of the staff’s initial report, I proposed, and then-Vice Chairman Bond agreed, and the committee overwhelmingly approved, that the committee conduct an expansive and full review of CIA’s detention and interrogation program.

On March 5, 2009, the committee voted 14-1 to initiate a comprehensive review of the CIA Detention and Interrogation Program. Immediately, we sent a request for documents to all relevant executive branch agencies, chiefly among them the CIA.

The committee’s preference was for the CIA to turn over all responsive documents to the committee’s office, as had been done in previous committee investigations.

Director Panetta proposed an alternative arrangement: to provide literally millions of pages of operational cables, internal emails, memos, and other documents pursuant to the committee’s document requests at a secure location in Northern Virginia. We agreed, but insisted on several conditions and protections to ensure the integrity of this congressional investigation.

Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”

It was this computer network that, notwithstanding our agreement with Director Panetta, was searched by the CIA this past January, and once before which I will later describe.

In addition to demanding that the documents produced for the committee be reviewed at a CIA facility, the CIA also insisted on conducting a multi-layered review of every responsive document before providing the document to the committee. This was to ensure the CIA did not mistakenly provide documents unrelated to the CIA’s Detention and Interrogation Program or provide documents that the president could potentially claim to be covered by executive privilege.

While we viewed this as unnecessary and raised concerns that it would delay our investigation, the CIA hired a team of outside contractors—who otherwise would not have had access to these sensitive documents—to read, multiple times, each of the 6.2 million pages of documents produced, before providing them to fully-cleared committee staff conducting the committee’s oversight work. This proved to be a slow and very expensive process.

The CIA started making documents available electronically to the committee staff at the CIA leased facility in mid-2009. The number of pages ran quickly to the thousands, tens of thousands, the hundreds of thousands, and then into the millions. The documents that were provided came without any index, without organizational structure. It was a true “document dump” that our committee staff had to go through and make sense of.

In order to piece together the story of the CIA’s detention and interrogation program, the committee staff did two things that will be important as I go on:

First, they asked the CIA to provide an electronic search tool so they could locate specific relevant documents for their search among the CIA-produced documents—just like you would use a search tool on the Internet to locate information.

Second, when the staff found a document that was particularly important or that might be referenced in our final report, they would often print it or make a copy of the file on their computer so they could easily find it again. There are thousands of such documents in the committee’s secure spaces at the CIA facility.

Now, prior removal of documents by CIA. In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.

In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.

After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.

This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.

I went up to the White House to raise this issue with the then-White House Counsel, in May 2010. He recognized the severity of the situation, and the grave implications of Executive Branch personnel interfering with an official congressional investigation. The matter was resolved with a renewed commitment from the White House Counsel, and the CIA, that there would be no further unauthorized access to the committee’s network or removal of access to CIA documents already provided to the committee.

On May 17, 2010, the CIA’s then-director of congressional affairs apologized on behalf of the CIA for removing the documents. And that, as far as I was concerned, put the incident aside.

This event was separate from the documents provided that were part of the “Internal Panetta Review,” which occurred later and which I will describe next.

At some point in 2010, committee staff searching the documents that had been made available found draft versions of what is now called the “Internal Panetta Review.”

We believe these documents were written by CIA personnel to summarize and analyze the materials that had been provided to the committee for its review. The Panetta review documents were no more highly classified than other information we had received for our investigation—in fact, the documents appeared to be based on the same information already provided to the committee.

What was unique and interesting about the internal documents was not their classification level, but rather their analysis and acknowledgement of significant CIA wrongdoing.

To be clear, the committee staff did not “hack” into CIA computers to obtain these documents as has been suggested in the press. The documents were identified using the search tool provided by the CIA to search the documents provided to the committee.

We have no way to determine who made the Internal Panetta Review documents available to the committee. Further, we don’t know whether the documents were provided intentionally by the CIA, unintentionally by the CIA, or intentionally by a whistle-blower.

In fact, we know that over the years—on multiple occasions—the staff have asked the CIA about documents made available for our investigation. At times, the CIA has simply been unaware that these specific documents were provided to the committee. And while this is alarming, it is also important to note that more than 6.2 million pages of documents have been provided. This is simply a massive amount of records.

As I described earlier, as part of its standard process for reviewing records, the committee staff printed copies of the Internal Panetta Review and made electronic copies of the committee’s computers at the facility.

The staff did not rely on these Internal Panetta Review documents when drafting the final 6,300-page committee study. But it was significant that the Internal Panetta Review had documented at least some of the very same troubling matters already uncovered by the committee staff – which is not surprising, in that they were looking at the same information.

There is a claim in the press and elsewhere that the markings on these documents should have caused the staff to stop reading them and turn them over to the CIA. I reject that claim completely.

As with many other documents provided to the committee at the CIA facility, some of the Internal Panetta Review documents—some—contained markings indicating that they were “deliberative” and/or “privileged.” This was not especially noteworthy to staff. In fact, CIA has provided thousands of internal documents, to include CIA legal guidance and talking points prepared for the CIA director, some of which were marked as being deliberative or privileged.

Moreover, the CIA has officially provided such documents to the committee here in the Senate. In fact, the CIA’s official June 27, 2013, response to the committee study, which Director Brennan delivered to me personally, is labeled “Deliberative Process Privileged Document.”

We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties.

These were documents provided by the executive branch pursuant to an authorized congressional oversight investigation. So we believe we had every right to review and keep the documents.

There are also claims in the press that the Internal Panetta Review documents, having been created in 2009 and 2010, were outside the date range of the committee’s document request or the terms of the committee study. This too is inaccurate.

The committee’s document requests were not limited in time. In fact, as I have previously announced, the committee study includes significant information on the May 2011 Osama bin Laden operation, which obviously postdated the detention and interrogation program.

At some time after the committee staff identified and reviewed the Internal Panetta Review documents, access to the vast majority of them was removed by the CIA. We believe this happened in 2010 but we have no way of knowing the specifics. Nor do we know why the documents were removed. The staff was focused on reviewing the tens of thousands of new documents that continued to arrive on a regular basis.

Our work continued until December 2012, when the Intelligence Committee approved a 6,300-page committee study of the CIA’s Detention and Interrogation Program and sent the report to the executive branch for comment. The CIA provided its response to the study on June 27, 2013.

As CIA Director Brennan has stated, the CIA officially agrees with some of our study. But, as has been reported, the CIA disagrees and disputes important parts of it. And this is important: Some of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.

To say the least, this is puzzling. How can the CIA’s official response to our study stand factually in conflict with its own Internal Review?

Now, after noting the disparity between the official CIA response to the committee study and the Internal Panetta Review, the committee staff securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.

And let me be clear about this: I mentioned earlier the exchange of letters that Senator Bond and I had with Director Panetta in 2009 over the handling of information for this review. The letters set out a process whereby the committee would provide specific CIA documents to CIA reviewers before bringing them back to our secure offices here on Capitol Hill.

The CIA review was designed specifically to make sure that committee documents available to all staff and members did not include certain kinds of information, most importantly the true names of non-supervisory CIA personnel and the names of specific countries in which the CIA operated detention sites.

We had agreed up front that our report didn’t need to include this information, and so we agreed to redact it from materials leaving the CIA’s facility.

Keeping with the spirit of the agreements, the portion of the Internal Panetta Review at the Hart Building in our safe has been redacted. It does not contain names of non-supervisory CIA personnel or information identifying detention site locations. In other words, our staff did just what the CIA personnel would have done had they reviewed the document.

There are several reasons why the draft summary of the Panetta Review was brought to our secure spaces at the Hart Building.

Let me list them:

The significance of the Internal Review given disparities between it and the June 2013 CIA response to the committee study. The Internal Panetta Review summary now at the secure committee office in the Hart Building is an especially significant document as it corroborates critical information in the committee’s 6,300-page Study that the CIA’s official response either objects to, denies, minimizes, or ignores.

Unlike the official response, these Panetta Review documents were in agreement with the committee’s findings. That’s what makes them so significant and important to protect.

When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.

As I have detailed, the CIA has previously withheld and destroyed information about its Detention and Interrogation Program, including its decision in 2005 to destroy interrogation videotapes over the objections of the Bush White House and the Director of National Intelligence. Based on the information described above, there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.

Now, the Relocation of the Internal Panetta Review was lawful and handled in a manner consistent with its classification. No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee offices on Capitol Hill. As I mentioned before, the document was handled and transported in a manner consistent with its classification, redacted appropriately, and it remains secured—with restricted access—in committee spaces.

In late 2013, I requested in writing that the CIA provide a final and complete version of the Internal Panetta Review to the committee, as opposed to the partial document the committee currently possesses.

In December, during an open committee hearing, Senator Mark Udall echoed this request. In early January 2014, the CIA informed the committee it would not provide the Internal Panetta Review to the committee, citing the deliberative nature of the document.

Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.

According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.

Instead, the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.

As I have described, this is not true. The document was made available to the staff at the offsite facility, and it was located using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation.

Director Brennan stated that the CIA’s search had determined that the committee staff had copies of the Internal Panetta Review on the committee’s “staff shared drive” and had accessed them numerous times. He indicated at the meeting that he was going to order further “forensic” investigation of the committee network to learn more about activities of the committee’s oversight staff.

Two days after the meeting, on January 17, I wrote a letter to Director Brennan objecting to any further CIA investigation due to the separation of powers constitutional issues that the search raised. I followed this with a second letter on January 23 to the director, asking 12 specific questions about the CIA’s actions—questions that the CIA has refused to answer.

Some of the questions in my letter related to the full scope of the CIA’s search of our computer network. Other questions related to who had authorized and conducted the search, and what legal basis the CIA claimed gave it authority to conduct the search. Again, the CIA has not provided answers to any of my questions.

My letter also laid out my concern about the legal and constitutional implications of the CIA’s actions. Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.

I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither.

Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.

Days after the meeting with Director Brennan, the CIA inspector general, David Buckley, learned of the CIA search and began an investigation into CIA’s activities. I have been informed that Mr. Buckley has referred the matter to the Department of Justice given the possibility of a criminal violation by CIA personnel.

Let me note: because the CIA has refused to answer the questions in my January 23 letter, and the CIA inspector general review is ongoing, I have limited information about exactly what the CIA did in conducting its search.

Weeks later, I was also told that after the inspector general referred the CIA’s activities to the Department of Justice, the acting general counsel of the CIA filed a crimes report with the Department of Justice concerning the committee staff’s actions. I have not been provided the specifics of these allegations or been told whether the department has initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.

As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly.

I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.

Mr. President, let me say this. All Senators rely on their staff to be their eyes and ears and to carry out our duties. The staff members of the Intelligence Committee are dedicated professionals who are motivated to do what is best for our nation.

The staff members who have been working on this study and this report have devoted years of their lives to it—wading through the horrible details of a CIA program that never, never, never should have existed. They have worked long hours and produced a report unprecedented in its comprehensive attention to detail in the history of the Senate.

They are now being threatened with legal jeopardy, just as the final revisions to the report are being made so that parts of it can be declassified and released to the American people.

Mr. President, I felt that I needed to come to the floor today, to correct the public record and to give the American people the facts about what the dedicated committee staff have been working so hard for the last several years as part of the committee’s investigation.

I also want to reiterate to my colleagues my desire to have all updates to the committee report completed this month and approved for declassification. We’re not going to stop. I intend to move to have the findings, conclusions and the executive summary of the report sent to the president for declassification and release to the American people. The White House has indicated publicly and to me personally that it supports declassification and release.

If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.

But Mr. President, the recent actions that I have just laid out make this a defining moment for the oversight of our Intelligence Community. How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee.

I believe it is critical that the committee and the Senate reaffirm our oversight role and our independence under the Constitution of the United States.”

Going after Induhviduals?* Be Still My Beating Heart!

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Benjamin Lawskey, head of New York’s Department of Financial Services is now saying that he will be looking at criminal filings against individuals:

Benjamin Lawsky, New York’s aggressive banking regulator who is campaigning to clean up Wall Street, is turning his sights on the individuals as well as the institutions who squeeze struggling homeowners or help banks violate US sanctions.

“Corporations are a legal fiction. You have to deter bad individual conduct within corporations,” said Mr Lawsky, superintendent of New York’s Department of Financial Services, in an interview with the Financial Times. “People who did the conduct are going to be held accountable.”

Mr Lawsky’s name-and-shame strategy taps into a wave of popular discontent in the US and Europe over the fact that few individual bankers have been personally sanctioned for the bad decisions that led to the global financial crisis. Taxpayers have been forced to stump up hundreds of billions of dollars to rescue banks brought low by reckless behaviour.

Mr Lawsky, who has ruffled the feathers of other US regulators by jumping ahead of them to accuse Standard Chartered of breaking sanctions on Iran, has already begun to take a tougher approach to individual behaviour.

As part of Royal Bank of Scotland’s settlement in December over sanctions violations, the bank was asked to let go of four RBS employees, including the head of Asia, the Middle East and Africa in the global banking unit, and claw back the bonuses of eight other employees. Mr Lawsky’s office is now investigating the rapid growth of non-bank mortgage servicing companies Ocwen and Nationstar. He is also looking into possible sanctions violations by several banks and the consultants that advise them. He recently requested information from a dozen banks over potential currency manipulation.

As the DFS does not have criminal authority all actions against individuals will have to be pursued through civil remedies such as fines.

“We think about it most in the area where there has been some sort of intentional misconduct as opposed to a systemic industry wide problem,” Mr Lawsky said. In addition to suspensions, industry bans and clawbacks, Mr Lawsky said he is also considering laying out the allegations in more detail to expose bad actors, which he hopes will deter people from getting into trouble.

The Department of Justice and other regulators have been criticised for not bringing charges against individuals and instead extracting large fines from banks to resolve allegations of misconduct.

Here’s hoping that this will eventually result in senior people (and I don’t just mean the usual non-white suspects like Raj Rajaratnam) ending up behind bars.

When former Senator and Goldman “Vampire Squid” Sachs CEO Jon Corzine and former Treasury Secretary Robert Rubin are sentenced to a few years in the hoosegow, I’ll throw a f%$#ing party.

*It’s the DNRC, man.